COURT FILE NO.: 16-305
DATE: April 10, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paterson v Paterson
BETWEEN: Lianne Paterson, Applicant and Thane Paterson, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Margaret Osadet for the Applicant, Natasha Pappin for the Respondent
DATE HEARD: April 6, 2018
ENDORSEMENT
[1] The applicant has applied to adjourn the trial in this matter which is set to proceed at the spring trial sittings of this court in about four weeks.
[2] The application was commenced in May, 2016. A case conference was held on August 18, 2016 at which time a temporary without prejudice spousal support order was issued on consent for the payment of $898.00 per month.
[3] A settlement conference was held on December 9, 2016.
[4] A date to continue the settlement conference was set for April 7, 2017 but was cancelled because the applicant’s counsel sustained an ankle injury shortly before the conference. Also the respondent’s counsel was relocating to the United States and a new counsel for the respondent would be required.
[5] In June 2017 the respondent’s new counsel scheduled the continuation of the settlement conference on October 27, 2017.
[6] Shortly before this date, counsel for the applicant (whose office is in Toronto) requested permission to participate by telephone. This request was refused and counsel arranged for an agent to attend in her place.
[7] Several disclosure items were discussed. The applicant, who was present in person, and /or the agent for her counsel, agreed to :
i) provide a copy of a house appraisal that was in her possession;
ii) supply photographs of the contents of the matrimonial home at the time she vacated the residence;
iii) provide evidence in support of her position regarding the value of the respondent’s motorcycle and Can-Am vehicle.
[8] In addition, the parties agreed to exchange information respecting their positions regarding the applicable notional tax rate to be deducted from the respondent’s pension and RRSPs.
[9] The applicant agreed to bring a motion to amend her pleadings to include a claim for mental and emotional distress within 60 days if no consent to do so was forthcoming from the respondent.
[10] It was agreed that a trial scheduling endorsement would be delivered by both counsel by January 31, 2018.
[11] The proceeding was traversed to the spring 2018 trial sittings for trial. The estimated time required was three days.
[12] The respondent agreed to certain disclosure requests as well but there is no issue respecting these items as the respondent fulfilled his commitments within a reasonable time.
[13] In accordance with the court’s usual practice, a trial management conference in anticipation of the upcoming trial was scheduled for April 5, 2018 and counsel were notified accordingly.
[14] This prompted counsel for the applicant to request an adjournment due to a competing trial commitment in another part of the province. The adjournment request was opposed by the respondent, hence the need for this motion.
Position of the Applicant
[15] Counsel for the applicant says she was engaged in a trial at the time of the settlement conference in December 2016 and failed to note that a trial date had been set for May 2018, although a copy of the endorsement was sent to her office by the trial coordinator.
[16] Respecting overdue disclosure, counsel advised she had requested her client to attend to it but in hindsight believes that she did not explain what was required clearly enough.
[17] The applicant “requests an order” to proceed by way of summary judgment on the issue of equalization.
[18] Applicant’s counsel indicated she would be in a position to proceed at the next sittings which will be in the fall of 2018.
Position of the Respondent
[19] The respondent wishes to proceed to trial as soon as possible. He is 71 years old and has health issues. The continuing litigation is stressful.
[20] The problem now faced by the applicant and her counsel was not created by the respondent.
[21] Applicant’s counsel has been inattentive to her responsibilities and the respondent shouldn’t have to bear the consequences. He has already had to pay more spousal support than he ought to have under the Spousal Support Advisory Guidelines because the applicant was slow in updating her financial situation.
Discussion and Analysis
[22] The factors to consider when faced with an adjournment request are:
i) the circumstances of the request and why it is needed;
ii) prejudice to the party resisting the adjournment;
iii) the broader public interest (see Turbo Logistics v. HSBC Canada, 2016 ONCA 222).
[23] The suggestion that it would be appropriate for the court to order the applicant to bring a summary judgment motion as a condition of an adjournment is ill-conceived. It is not for the court to order parties to bring motions. Motions are brought on the advice of counsel after weighing the prospective benefits, risks and costs of doing so.
The Circumstances Surrounding the Request
[24] A request for an adjournment about four weeks before trial raises a serious question whether new counsel can be retained on short notice and if not, what potential prejudice does the applicant face?
[25] In this case the issues except for one are not complex but the question of the valuation of the applicant’s survivor benefits is important and somewhat complicated. The implications are significant because in the particular circumstances of this case, this one factor has a major impact on the equalization calculation.
[26] It is clear that applicant’s counsel has been neglectful with implications for both parties. Conspicuous by its absence is an indication of when the conflicting court date was booked. Was it before or after the trial date was set in this matter in October, 2017?
[27] Even more significant is the absence of any explanation regarding why Ms. Osadet did not take immediate steps to notify opposing counsel and the court when it became apparent to her there was a conflict. I note that she was provided with the Endorsement containing the trial date by the Pembroke trial coordinator following the settlement conference. This was followed by the respondent’s counsel sending her the respondent’s portion of the trial endorsement scheduling form around the end of January 2018 as ordered at the settlement conference. This was an obvious clue that something was going on. Ms. Osadet says she was engaged in another trial until February 2, 2018 and this was the reason that her attention was diverted from this case. Why then was nothing done to deal with the scheduling conflict in February instead of waiting another two months? It would have been much easier to secure replacement counsel if notification had occurred sooner. The delay compounded the difficulty.
Prejudice to the Respondent
[28] The relevant factors specific to this situation have been enumerated by his counsel. I note that this is not a situation where the respondent is in a precarious position financially.
[29] Fortunately, unlike many family law cases, parenting arrangements for children are not involved in this case which are always an important consideration in determining whether a trial should proceed sooner rather than later.
[30] In addition, the respondent’s support obligation has been substantially reduced from $898.00 per month to $369.00 per month because of fresh financial information from the applicant and this reduces the respondent’s prejudice as well. At the same time, I acknowledge the distinct possibility that if the applicant had satisfied her disclosure obligations more promptly, the respondent would not have overpaid his support obligations for as long a period of time.
[31] In addition to the prejudice sustained by the respondent inherent in any delay, he has incurred legal costs in dealing with this motion, in preparing for and attending a trial management conference which will have to be repeated if the trial is adjourned plus the costs of getting ready for a trial which is only a few weeks away.
[32] There is also the question of whether the applicant can satisfy a costs order if the case is adjourned subject to an order for the payment of a reasonable allowance for costs.
[33] At bottom, however, I assess the impact of a delay on the respondent more as an inconvenience for him than a hardship.
The Broader Public Interest
[34] It is often said that the errors of the lawyer should not be visited upon the client. At the same time, is there a point when the accumulated neglectful conduct by counsel cannot simply be overlooked? Is there a point when the broader public interest requires that there be real consequences, even when collateral damage occurs?
The Balancing of the Factors
[35] Weighing the foregoing considerations leads me to conclude there is a greater prejudice, at least potentially, to the applicant in forcing this matter on for trial than the prejudice to the respondent associated with a delay until the next sittings.
[36] The case has not been underway for an excessive period of time, having been commenced in May 2016.
[37] To a large extent, the prejudice accruing to the respondent is compensable in costs.
Disposition
[38] The trial shall be adjourned until the sittings in the fall of 2018, peremptory to the applicant.
[39] The parties may deliver written submissions respecting costs of the motion, the wasted trial management conference and costs thrown away.
[40] Ms. Osadet shall specifically address whether some or all of the costs ordinarily to be borne by the applicant ought to be paid by her personally or whether she ought to be required to reimburse the applicant pursuant to rule 24(9) of the Family Law Rules.
[41] The positions of the parties respecting costs shall be delivered within 30 days on a schedule agreed to by counsel, not to exceed 10 pages in length.
”ORIGINAL SIGNED BY”
James, J.
DATE: April 10, 2018
COURT FILE NO.: 16-305
DATE: April 10, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paterson v Paterson
BETWEEN: Lianne Paterson, Applicant
and Thane Paterson, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Margaret Osadet for the Applicant, Natasha Pappin for the Respondent
ENDORSEMENT
James, J.
DATE: April 10, 2018